Court to examine use of new execution drug

When Florida executed William Happ on Oct. 15, news media accounts of the execution highlighted Happ's apparent physical discomfort during a procedure that also lasted slightly longer — 16 minutes — than usual.

Happ's execution also marked the first time in the history of executions in the United States that the anti-anxiety drug Midazolam, commercially known as Versed, was the first drug used in a three-drug protocol. It was followed by a paralytic, or drug that induces paralysis, and finally the drug that causes cardiac arrest and death.

Before the execution, lethal injection experts across the nation opposed Florida's decision to use Versed, an unknown drug for executions. Happ's execution has given them even more momentum to oppose both the use of Versed as well as the state's three-drug protocol.

A hearing on Wednesday in the U.S. District Court in Jacksonville will address these issues, after lawyers for death row prisoners across the state filed a complaint about the Florida Department of Correction's “Midazolam Protocol.”

“It needs to be litigated unfortunately because that's the only way to determine what is or is not constitutional,” said Stephen Harper, a professor at Florida International University College of Law in Miami.

Since Versed is primarily used as a preanesthetic drug in surgery, and the paralytic that follows would effectively mask any pain experienced by the third drug, experts warn that the protocol could induce an extreme amount of pain — which is against the Eighth Amendment of the U.S. Constitution prohibiting cruel and unusual punishment.

Speaking about the third drug, which is concentrated potassium chloride, Megan McCracken, who directs the death penalty clinic at the University of California Berkeley School of Law, said, “If given to a conscious person who has been inadequately anesthetized, it causes incredible pain because it activates nerve endings. It will feel like burning through the circulatory system until it reaches the heart, which it stops.”

Harper added that “the state would be well advised to suspend any and all executions until the state resolves this issue.”

The execution of Darius Kimbrough is scheduled for Nov. 12, and that of Thomas Knight, on Dec. 3. Knight's lawyer has filed an appeal with the Florida Supreme Court about Versed.

The lawyers who filed the complaint being discussed on Wednesday are hoping that the judges allow them to file the complaint officially, and require the FDOC to respond to lawyers' questions about how it decided to use the protocol.

So far, the FDOC has said that it started using Versed because of a shortage of the drug it had been using, pentobarbital sodium. There has been a shortage of that drug, as well as lethal injection drugs nationwide, since the drugs' European manufacturers stopped sending drugs to prisons known to use the drugs in executions.

In response, some states with the death penalty are using compounding pharmacies.

Most states also have switched to a one-drug protocol, particularly after the failed execution of Romell Broom in Ohio in 2009. Several people tried for two hours to find a vein in which to administer the lethal injection drugs, but they stopped after his cries and screams, said Deborah Denno, a leading national expert on lethal injection at Fordham University in New York.

Denno said that Florida's own history of botched executions is ample, and should be a check for the state to get in line with what other states are doing in terms of execution protocols.

“You'd think a state with that reputation would be the first to treat (executions) more carefully than they have,” Denno said.

McCracken added that there's no reason that Florida can't switch to a one-drug protocol.

“There's ample evidence that executions using a one-drug are effective,” she said. “We know that if a paralytic is not used, there is far less pain and suffering that would warrant constitutional protection.”

McCracken wouldn't speculate on the rationale behind Florida's insistence on the three-drug protocol, but underscored the fact that using a paralytic creates the appearance of serenity.

“It will cover anything that might go wrong. It prevents the person from speaking and moving,” McCracken said. “That is extremely worrisome, but potentially an attractive aspect of it.”